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Opinion issued April 26, 2007

























In The

Court of Appeals

For The

First District of Texas




NO. 01-07-00013-CV




IN RE RONNIE D. WILSON, Relator




Original Proceeding on Petition for Writ of Mandamus




MEMORANDUM OPINION

By petition for writ of mandamus, the relator, Ronnie D. Wilson, challenges the trial court's December 12, 2006 order denying her motion to transfer venue. (1)

We conditionally grant the petition for writ of mandamus.

Background

Ronnie D. Wilson ("Ronnie") and Bradley John Wilson ("Bradley") were married and had two children. In March or April 2005, Ronnie and Bradley separated, and Ronnie and the children moved to Jim Wells County, Texas. Ronnie and Bradley subsequently filed for divorce in Harris County, Texas. Under the court's temporary orders, Ronnie was permitted to maintain the residence of the children in Jim Wells County until the court entered a final decree of divorce.

On August 21, 2006, the court entered the final decree of divorce, which contained a residency restriction for the couple's children. Pursuant to the decree, Ronnie was required to designate the primary residence of the children within Harris County, Texas or a contiguous county by November 1, 2006. The Final Divorce Decree was signed by Ronnie under the words, "Approved and Consented to as to Form and Substance."

Just over one month later, on September 29, 2006, Ronnie filed a petition to modify the parent-child relationship, alleging that she and the children had lived in Jim Wells County for over six months and seeking the right to establish their residence within Jim Wells and contiguous counties. That same day, Ronnie also filed a motion to transfer venue of this matter to Jim Wells County.

Eleven days later, Ronnie contacted Bradley and asked him for permission to bring the children to reside in Montgomery County (2) on November 3, 2006 instead of November 1, 2006 as expressly ordered by the court. Bradley consented to the request and wrote a letter to Ronnie stating, "Ronnie, As we discussed on the phone, I give you my permission to keep [A.E.W.] and [A.L.W.] in Alice through November 3rd, 2006 so that [A.E.W.] may complete the 6-week period of the school year. Thereafter, you have my permission to home school [A.E.W.] and [A.L.W.] in Montgomery, Texas through the end of the Fall semester of 2006." On November 3, 2006, Ronnie and the children moved to Montgomery County.

The court subsequently held an evidentiary hearing on Ronnie's motion to transfer venue. At the conclusion of this hearing, the court stated, "The Court having heard evidence and argument of counsel finds that this Court, on August the 5th, 2006, (3) signed an order establishing the children's residence to be Harris and contiguous counties and that Ronnie return to Harris County no later than November the 1st of 2006. The Court is--from evidence she did not return until November the 3rd in violation of the Court's order, the court is denying the transfer of jurisdiction." Ronnie filed this petition for writ of mandamus.

Standard of Review Mandamus relief is available only to correct a "clear abuse of discretion" when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). "A trial court clearly abuses its discretion if 'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). Mandamus will issue when there is a legal duty to perform a nondiscretionary act, a demand for performance, and a refusal. O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (orig. proceeding).

Mandatory Venue

The Family Code mandates that venue shall be transferred under the following circumstances:

If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall, within the time required by Section 155.204, transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.



Tex. Fam. Code Ann. 155.201(b) (Vernon Supp. 2006). "A motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed." Id. 155.204(b) (Vernon Supp. 2006). (4)

The six-month residency period under this mandatory venue statute begins when the child's actual residency in another county begins, not when the original custody decree is signed. Tippy v. Walker, 865 S.W.2d 928, 929 (Tex. 1993) (orig. proceeding). Furthermore, "transfer of a case to a county where the child has resided for more than six months is a mandatory ministerial duty." Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding).

In this case, Ronnie filed both a petition to modify in the court having continuing, exclusive jurisdiction and a motion to transfer venue to Jim Wells County, in which she stated that the children had resided in Jim Wells County for at least six months. Ronnie also testified that the children had lived in Jim Wells County for at least six months at the time that she filed her petition to modify and motion to transfer venue. Ronnie argues that, because Bradley did not dispute this testimony, the trial court was required to transfer this matter to Jim Wells County pursuant to Section 155.201(b). We agree.

Nevertheless, citing the holding in Huey v. Huey, 200 S.W. 3d. 851, 853 (Tex. App.--Dallas 2006, no pet.), Bradley argues that Ronnie waived the right to a transfer of venue to hear her motion to modify her children's residency by seeking an agreement with Bradley to violate the court's express order regarding the children's residency and then violating the court's order by delivering the children to Montgomery County on November 3, 2006 instead of November 1, 2006. Bradley's reliance on Huey to find waiver in this case is misplaced. In Huey, the parent's violation of the final decree, which the court found to have constituted waiver, resulted in the children residing for six months outside the county mandated by the decree. Id. In this case, Ronnie's violation of the court's decree to return the children from Jim Wells County did not result in the children residing in Jim Wells County over six months. Rather, the children had resided in Jim Wells County for well over six months before Ronnie violated the court's decree and delivered them to Montgomery County on November 3, 2006.

Conclusion

Accordingly, we hold that upon Ronnie's timely motion, the court had a nondiscretionary duty to transfer the case to Jim Wells County, Texas. See Proffer, 734 S.W.2d at 673. Because it did not do so, we conditionally grant relator's petition for writ of mandamus. O'Connor, 837 S.W.2d at 96. We direct the trial court to vacate its order denying relator's motion to transfer venue and enter an order granting relator's motion to transfer venue to Jim Wells County, Texas. We are confident that the trial court with promptly comply, and our writ will issue only if it does not.







George C. Hanks, Jr.

Justice



Panel consists of Justices Taft, Alcala, and Hanks.



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Section 155.201 provides that "if a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall transfer the proceedings to another county. . . ." Tex. Fam. Code Ann.  155.201(b). Section 155.204 provides, "Except as provided by Section 262.203, a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed." Id. 155.204(b). Here, relator filed her motion to transfer venue contemporaneously with her counter-petition to modify matters affecting the parent-child relationship. By filing a motion to modify, relator is classified as a petitioner. See In re Simonek, 3 S.W.3d 285, 288 (Tex. App.--Waco 1999, orig. proceeding). Thus, relator's motion to transfer venue was timely filed if it was made at the time that her initial pleadings in her suit to modify were filed. Id.; Tex. Fam. Code Ann. 155.204(b). Initial pleadings refers to the first pleadings filed by that petitioner. In re Simonek, 3 S.W.3d at 288. Here, relator's first pleadings in regard to modifying the parent-child relationship were her motion to modify and her motion to transfer venue. Because she filed her motion to transfer venue at the time that she filed her initial pleadings, relator's motion to transfer venue was timely. See In re Wheeler, 177 S.W.3d 350, 354 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding).